Supreme Court challenges its own authority by failing to address the question of presidential immunity

The continuing contempt controversy

By: Waris Husain

Prime Minister Yousuf Raza Gilani has been convicted by Pakistan’s Supreme Court for contempt of court, with implications that such a conviction will disqualify him from holding the office. Rather than levying the maximum punishment of six months imprisonment, the Court held the prime minister under arrest until the conclusion of the hearing, which amounted to 30 seconds. Such a nominal punishment shows that neither the Court nor the prime minister have delivered a final blow to the other. The Court may have taken the proper pragmatic measures to deal with the current political environment, but it will need to take further steps to legally address the central claim of the case.

While many in the media are touting the judgment by the Supreme Court as the last chapter in Gilani’s career as prime minister, the procedures behind disqualification from Parliament are far from over. First, Mr. Gilani will likely appeal his conviction before all the Justices of the Supreme Court, rather than the seven Justice panel that adjudicated his contempt charges. However, critics of the Court will likely claim that Gilani will have no chance at a fair appeal, considering the Court has already made its decision to depose him.

The Order from the Court does not, however, directly disqualify the Prime Minister. The order states: “the conviction for contempt of court recorded above are likely to entail some serious consequences in terms of Article 63 (1) (g) of the Constitution.” The article allows for the disqualification of any member of Parliament who has been “convicted by a court for propagating any opinion or acting in any way that… brings into ridicule the judiciary or Armed Forces of Pakistan.”

The Court used the language “likely to entail” because the right to terminate parliamentarians’ tenure is constitutionally vested in the Speaker of the National Assembly and the Election Commission. Under Article 63 (2), once the Speaker has received notice of a parliamentarian’s conviction, he/she may forward the issue to the Election Board within 30 days which must make a decision within 90 days. This process is the exclusive duty of the legislative department, rather than the Court. Therefore, the process to disqualify the prime minister has only just begun.

In many ways, the Court has broken history by punishing a sitting prime minister with contempt of court. However, they did so in a narrow manner which respected the constitutional procedures laid out for the disqualification from the Parliament. Further, by issuing a nominal 30 second in-court punishment, the Court was able to voice its concern about Gilani’s actions without imprisoning a serving prime minister.

In many ways, Gilani may have predicted the squeamishness of the Court in imprisoning him, which may be why he adopted an aggressive stance towards the Court. By continuing to push back against the Court’s original order, and refusing to enact its judgment, the prime minister backed the Justices into a corner. If the Court punished the prime minister to the extent that its supporters expected, they would be sending a sitting head of the government to prison for six months. In a country where democratic regimes have a small rate of survival, the Supreme Court rightfully wished to avoid this occurrence. On the other hand, the Court had created too much attention on the issue to let Gilani walk away so easily. Therefore, the 30 second sentence was adopted.

However, this conviction is not a winning situation for the prime minister, who faces a battle for survival right before the elections. While the Parliament will ultimately determine the prime minister’s fate, the Court’s decision will haunt Gilani because his refusal to comply with court orders will damage his already-floundering credibility. The prime minister’s continual refusal to resign from his post has infuriated many opposition leaders and even members of his own party, especially after the nation’s apex court has issued a judgment against him.

Beyond the political outcomes of the contempt decision, one should look to the central order at the center of this controversy. Justice Nasirul Mulk noted that Prime Minister Gilani had “willfully flouted” the Court’s orders, which demanded him to write a letter to Swiss authorities reactivating a case against President Asif Ali Zardari. Gilani has consistently maintained that under Article 248 of the Constitution, the President enjoys blanket immunity from prosecutions, and writing such a letter would violate his oath to uphold the Constitution.

Rather than addressing Gilani’s central legal defense, the Court claimed that Gilani’s actions tend “to bring the judiciary into ridicule.” However, the Court challenges its own authority by failing to address the question of presidential immunity. This is especially important when one looks to the recent New York Times story which revealed that Swiss authorities will not prosecute Zardari, even if a letter is sent to them by the prime minster.

The Swiss prosecutor has continually asserted that they will not prosecute Zardari as long as presidential immunity is held as valid constitutional guarantee. If the Court was truly adamant about pursuing justice against Zardari in the Swiss case, they could have issued a separate order following up on the NRO decision which defined and limited presidential immunity. While immunity is a separate issue from Gilani’s case, it is central to his defense that he acted in good faith by refusing to execute the Court’s order.

However, the Court has yet to issue an opinion on presidential immunity, which means that the Swiss will not reinstate the case against Zardari, even if a letter is written by someone else in the government. This means Gilani is being punished for failing to assist a prosecution which the Supreme Court justices are themselves impeding by failing to issue a judgment on immunity.

Neither the prime minister nor the Justices of the Supreme Court have escaped this fray unscathed. Gilani has been dealt a serious blow, as the Speaker of the Parliament may feel pressured to begin disqualification proceedings against him, but he lives to see another day. The result for the Court is a mixed bag; however, the Court should hear the appeal by Gilani and issue a separate order defining and/or limiting presidential immunity to supplement the original NRO decision.


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